Henry Cowell Lime & Cement Co. v. Figel

HART, J.

The court below denied the motion of the plaintiff for an order directing the sale, by virtue of the provisions of section 547 of the Code of Civil Procedure, of certain personal property, which the sheriff had levied upon and seized under a writ of attachment issued in this action.

This appeal is from the order denying the application for the sale of the property.

The motion was made upon the 'affidavit by one of the attorneys for the plaintiff and upon the testimony of eleven witnesses taken and heard on behalf of the plaintiff. No part of the testimony so taken is presented in the record on this appeal.

The affidavit above mentioned states, however, that a writ of attachment was “duly and regularly issued in the above-entitled cause, ’ ’ and the same delivered to the sheriff of Santa Clara County; that, thereupon, said sheriff “duly and regularly levied said attachment upon certain goods situated in a certain warehouse . . . ; that said goods, wares and merchandise, among other things, consist of certain cement . . . and certain lime and plaster; that the said cement is in sacks in said warehouse and that said cement is perishable in this, that when said cement is kept in sacks, the cement absorbs moisture from the air and becomes hard and unfit for use; . . . ; that said lime is in sacks in said warehouse, and that when the same is kept in sacks for any considerable length of time, the same slakes and becomes unfit for use and that, therefore, all of said cement, lime and plaster is perishable property.”

The following facts were admitted at the hearing. That the plaintiff commenced this action on the thirty-first day of March, 1911, and, on the same day, the sheriff levied a writ of. attachment upon 1616 sacks of Mt. Diablo cement which were stored in the warehouse of the defendant, Figel; that said Figel was a dealer in lime and cement in the city of San Jose, and maintained said warehouse, to which his patrons had access and in which were stored “at the time herein mentioned” various bags of cement belonging to other persons, the patrons of said Figel; that, previous to the issuance and levy of said writ of attachment, the county -of Santa Clara

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had1 purchased from the said Figel 1138 sacks of the said Mt, Diablo cement, “and, at the time of the levy of said attachment, the said last named sacks of cement had been segregated from the remainder thereof and that there had been placed thereon a placard bearing the words, ‘Property of the County of Santa Clara.’ ”